EU faces ‘long row’ over cross-border healthcare

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A recent proposal to ease reimbursement of the health care European citizens receive while visiting other EU countries is just “the beginning of a long row,” predicted a top Commission official as German diplomats warned they may challenge the legal basis of the draft directive. 

The warning came during a stakeholder debate on the Commission’s recent proposal on patients’ rights in cross-border health care, which took place in Parliament on 15 July. 

Robert Madelin, the director general at the Commission’s health and consumer protection department, predicted that early discussions on the draft directive signalled “the beginning of a long row” as he struggled to defend the proposal against hesitations over the legal workability of the system. Others pointed to the gap that the proposal could create between rich and poor. 

“In a decade, we will look back and see how far we’ve got,” said Madelin, suggesting that discussions over the matter could take many years. The draft directive only “streamlines the rights that the Court has already delivered,” said the top EU official. “It is not the end of the world as seen by health managers,” he added.

However, the biggest obstacle to increased patient mobility in Europe came from a member state representative, who argued that acceptability of EU jurisdiction as a basis for the Directive is questionable and that, instead, something stricter could be envisaged.

Irene Wittmann-Stahl, a health attaché at the Permanent Representation of Germany to the EU, said a lot of questions remained to be answered before the Council was able to form its opinion on the draft directive. These include:

  • Legal certainty.
  • Will ECJ jurisdiction be accepted as a starting point for the Directive or should one go back and make it stricter?
  • Who should be protected? Individual patients or health care systems, which have the obligation and need to guarantee equal access to treatment?
  • How about national steering capacity, which varies from one member states to another?
  • At what stage are member states' rights are no longer respected? (cf. Article 152 of the Treaty guaranteeing the competence on organisation and delivery of health care to member states.) 
  • Despite Article 152, do member states accept that the four freedoms of internal market apply to health care as well?
  • How about subsidiarity regarding patient mobility?
  • Do member states agree that the directive creates more rights at EU level?

Looking ahead, MEP Miroslav Mikolášik (EPP-ED, SK)  lamented that the directive could become "so restrictive that it will not deliver". 

Meanwhile MEP Avril Doyle (EPP-ED, IE) argued that the directive was "a Charter for wealthy to opt for care abroad," as people need to pay for the care first themselves "which is not an option for the poor". Therefore, she said, it would lead to more inequality than equality.

"We fear that this would not work out and the directive, which we welcome in principle, would not be able to bring the benefits nor to the patients nor to the service providers," said Marc Schreiner from the German Hospital Federation, challenging the whole Commission proposal and the way in which the draft proposes to reimburse the same or similar care received abroad according to national barometers for equivalent care. 

Referring to the results of an EU-funded project [HealthBasket] which concluded that comparing health services in the EU 27 is not possible (as access to different care and their prices vary considerably), Schreiner argued that until we know exactly how much taxpayers' money goes to, for example, specific dental care or a hip replacement, it is not possible to establish a reimbursement system as laid down in the Commission proposal. 

"The core problem of this directive is that as national health systems are not comparable, the reimbursement system can't work out and the directive would not help to initiate a cross-bordering supply of health services," said Schreiner. He also said that as we can't currently compare the health services, some have proposed the creation of baskets of treatments to which all citizens have a right all over Europe, and the price of which would be agreed upon. However, "this would clearly exceed the competence of the EU," he noted. 

German hospitals hope to get more patients from other countries but in order to do so "a clear reimbursement system is need", he concluded.

Commission Director General for Health and Consumer Protection Robert Madelin agreed, to some extent, with Schreiner's comments, saying "creating shadow-pricing data will become necessary" in the future so as to know just how many taxpayers' euros it costs to replace a hip. According to Madelin, such data have never been created because, so far, there has not been a "culture of co-operation" in the field.

After repeated delays and lengthy internal consultations, the Commission finally published its proposal for a Directive on the application of patients' rights in cross-border healthcare on 2 July 2008. 

Overall, the directive is set to clarify the right of patients to seek health care in another EU country and be reimbursed by their national system.

  • Sept. 2008: In-depth analysis of the draft Directive by the Council.
  • The proposal has little chance of going through the co-decision procedure during the Barroso Commission. First reading in the Parliament may still take place next spring, but the readings will have to begin again from scratch after the June 2009 parliamentary elections, involving the appointment of new rapporteurs.

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